07 July 2016
The arrival of driverless cars is racing towards us with testing already underway in the UK. Cars with a limited level of automation are anticipated to be on our roads from around 2018. These vehicles will be capable of undertaking increasingly large proportions of journeys autonomously whilst retaining the need for a driver to take manual control some of the time. The arrival of fully ‘driverless’ cars (vehicles which physically do not require a driver) are not expected until at least 2020 at the earliest.
The suggestion seems to be that fully autonomous vehicles have the potential to improve road safety by removing the ‘human error’ from accidents. This raises the issue of how liability will be determined in accidents involving driverless vehicles in the future.
Initially, vehicles with high automation can be expected. These vehicles will require drivers to be present and will request that the driver take manual control of the vehicle due to certain traffic, road or weather conditions. These vehicles will include features such as automatic braking and lane assistance systems. As technology progresses, vehicles may become increasingly autonomous with the potential for ‘fully automated’ vehicles which do not require drivers in all traffic, road and weather conditions.
In terms of liability, it seems likely that drivers will remain responsible for the overall safe operation of the vehicle, even if it has high automation. It is therefore important that the process of a driver safely resuming manual control of the vehicle is clear, easy to understand and easy to execute.
In 2014, the Department for Transport consulted on review of the regulatory framework in anticipation of the introduction of driverless cars. One of the Government’s aims is to clarify how liability ought to be determined in the event of an accident involving a driverless vehicle.
Fully automated vehicles are anticipated to allow drivers to completely disengage from driving to allow the driver to undertake other tasks. In other words, the control of vehicles will transfer from human to computer. Standing this, can we anticipate liability to follow that transfer of risk? Unfortunately, the issue is not likely to be so simple.
If a driver is no longer expected to monitor road conditions, a move toward to product liability could be envisaged. Potentially responsible parties could include the vehicle manufacturer, the manufacturer of one of the components in the vehicle or the software engineer who programmed the autonomous vehicle. Should we see the introduction of intelligent road systems, this list has the potential to include the road designer.
Some manufacturers, including Volvo, have already stated that they would accept liability should one of their autonomous vehicles be involved in an accident. The apportionment of liability between vehicle and driver may vary from case to case depending on the facts and who was, or ought to have been, in control of the vehicle either at or just prior to the accident. Respondents to the Government’s consultation recommended the use of independent event data recorders and camera systems to address this issue.
Driving matters forward, the Department for Transport aims to review the existing legislation and clarify how liability passes between the driver and vehicle manufacturer by the summer of 2017. Draft Regulations on this issue are expected to be published in 2018. It is, therefore, a case of on your marks, get set…. to wait and see how this area of technology and the law develops.
Garry Ferguson Partner gfe@bto.co.uk T. 0141 221 8012